By Ephraim Makke<\/p>\n
In most democratic states, there is always the tendency for citizens to assume, though erroneously, that the exercise of the rights guaranteed under the Constitution is absolute and without limit.<\/p>\n
Buoyed by such reasoning, some citizens are often tempted to make demands, ranging from the unusual to the absurd, believing that it was within their democratic rights to so act.<\/p>\n
Such was the recent case of the 2007 presidential candidate of the African Democratic Congress (ADC), Patrick Okedinachi Utomi (Pat Utomi), who, in his assumed rights to freedom of expression, association and political participation, announced a plan to establish what he called a shadow government or cabinet.<\/p>\n
Utomi went to the extent of allocating portfolios, in his so-called alternative government, to some of his associates before the Department of State Services (DSS) took the initiative to approach the court to challenge the legitimacy of the adventure by Utomi and his associates.<\/p>\n
The suit<\/p>\n
The announcement by Utomi about his planned shadow government attracted huge reactions, with many accusing him of acting to undermine the current federal administration and, by extension, the country\u2019s democracy.<\/p>\n
While many called for his arrest and prosecution, others, who share his perspective, argued that he was acting within his democratically guaranteed rights.<\/p>\n
Rather than joining the fray, as the agency statutorily empowered to safeguard the internal security of the country and prevent any threats to the lawful authority of the Federal Republic of Nigeria and its constituent institutions, the DSS decided to approach the court for its intervention.<\/p>\n
On May 13, 2025 its team of lawyers, led by Akinlolu Kehinde (SAN), lodged a case at the registry of the Federal High Court in Abuja.<\/p>\n
In the suit, marked: FHC\/ABJ\/CS\/937\/2025, with Utomi listed as the sole defendant, the plaintiff raised two questions for the court\u2019s determination and prayed the court for three principal reliefs.<\/p>\n
The questions:<\/p>\n
Whether, by virtue of sections 1(1), 1(2), and 14(2)(a) of the Constitution, any person or group of persons, including the defendant, can lawfully establish or operate a \u201cshadow government\u201d or any parallel governmental structure not recognised by the Constitution.<\/p>\n
Whether the defendant\u2019s actions and public declarations regarding the formation of a shadow government\u201d constitute an attempt to usurp or exercise governmental powers outside the constitutional framework, thereby contravening the provisions of the Constitution.<\/p>\n
The reliefs<\/p>\n
A declaration that, under sections 1(1), 1(2), and 14(2)(a) of the Constitution, the establishment or operation of any governmental authority or structure outside the provisions of the Constitution is unconstitutional, null, and void.<\/p>\n
A declaration that the defendant\u2019s plan to establish a \u201cshadow government\u201d or \u201cshadow cabinet\u201d is unconstitutional and amounts to an attempt to create a parallel authority not recognised by the Constitution.<\/p>\n
An order of perpetual injunction restraining the defendant, whether by himself, his agents, privies, or any other person acting under his authority, from further taking any steps towards the establishment or operation of a \u201cshadow government, \u201cshadow cabinet\u201d, or any similar entity not recognised by the Constitution.<\/p>\n
The plaintiff\u2019s case<\/p>\n
The DSS stated that, through intelligence and constant monitoring, it discovered that Utomi announced the purported establishment of a shadow government or shadow cabinet with other persons as ministers.<\/p>\n
It contended that the shadow government is an unregistered and unrecognised body claiming to operate as an alternative government contrary to the provisions of the Constitution.<\/p>\n
The plaintiff stated that the defendant announced that the formation of the shadow government is with the intent to challenge the legitimacy of the democratically elected government of the country.<\/p>\n
It expressed concern that such a structure, if left unchecked, may incite political unrest, cause inter-group tensions and embolden other unlawful actors or separatist entities to replicate something similar.<\/p>\n
The DSS stated that Utomi\u2019s actions were capable of usurping the powers of the executive as enshrined in the Constitution, adding that despite the Federal Government\u2019s efforts to engage him to dissuade him from his path, Utomi allegedly remained defiant.<\/p>\n
The plaintiff stated that Utomi\u2019s activities and utterances in establishing and promoting a shadow cabinet were capable of undermining the authority of the legitimate government and inciting political instability.<\/p>\n
The DSS explained that its reason for approaching the court was for its judicial interpretation on whether Utomi\u2019s \u201cactions cross the constitutional boundary into conduct that is potentially subversive, seditious and unlawful.\u201d<\/p>\n
Utomi\u2019s defence<\/p>\n
In his defence, Utomi, who contested the presidential election in 2007 under the platform of the African Democratic Congress (ADC), described himself as a Professor, accomplished author, politician and an entrepreneur.<\/p>\n
Utomi stated that the Big Tent Association (BTA), under which he and others in the shadow government project were operating, is a registered association that prides itself on shadowing policy activities.<\/p>\n
He, however, claimed that the group did not claim to operate as an alternative or parallel government, adding that the establishment of the shadow cabinet is consistent with the spirit and letters of the Constitution.<\/p>\n
Utomi also stated that the formation of a shadow cabinet is a common practice globally, and it refers to a legitimate civic and political practice where opposition parties or groups form cabinets-in-waiting to provide oversight, articulate policy alternatives and prepare for democratic transition.<\/p>\n
He equally stated that Section 14 of the Constitution allows the nation\u2019s citizens to participate in government and that citizens have a right to express themselves as well as associate with others.<\/p>\n
Utomi denied that his actions constituted an usurpation of executive powers and that the shadow government did not constitute a threat to national security. He prayed the court to dismiss the suit.<\/p>\n
Utomi, who was represented by Mike Ozekhome (SAN), also filed a notice of preliminary objection, with which he challenged the plaintiff\u2019s right to institute the suit (locus standi) and the jurisdiction of the court to hear and determine the suit.<\/p>\n
How court aborted Utomi\u2019s plot<\/p>\n
In determining the case, the trial judge, Justice James Omotosho, formulated three issues for determination. They are:<\/p>\n
Whether the plaintiff has disclosed a reasonable cause of action under the National Security Agencies (NSA) Act to activate the jurisdiction of the court.<\/p>\n
Whether the formation or declaration of a shadow government or shadow cabinet is recognised under the country\u2019s Constitution.<\/p>\n
Whether the filing of the suit by the plaintiff violates or threatens to violate the fundamental rights of the defendant.<\/p>\n
On the first issue, Justice Omotosho faulted the defendant\u2019s argument that his actions related to civic engagement and the formation of a shadow government, which has nothing to do with internal security.<\/p>\n
The judge held that the DSS, an agency saddled with the task of maintaining internal security in the country under the NSA Act, was right to have sued to stop the actions of the defendant, which threaten national security.<\/p>\n
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\nUpon a closer examination of the originating processes, Justice Omotosho proceeded to hold that the plaintiff\u2019s case \u201cas presently couched, discloses a reasonable cause of action against the defendant.\u201d<\/p>\n
He added that the supporting facts show a link between the actions of the defendant and the internal security of Nigeria.<\/p>\n
The judge said: \u201cAs stated earlier, a reasonable cause of action does not necessarily mean a suit which will succeed, but one which discloses facts upon which the court can proceed with the suit.<\/p>\n
\u201cConsequently, a reasonable cause of action has been disclosed against the defendant, and this court will assume jurisdiction over the suit.\u201d<\/p>\n
In resolving the second issue, Justice Omotosho held that, as against the case in the parliamentary system of government, which recognises the idea of a shadow government, Nigeria operates a presidential system that has no provision for such an alternative arrangement.<\/p>\n
The judge added that, assuming the country was practising the parliamentary system, Utomi and his associates were still not qualified to form a shadow government since they are not elected members of the parliament, who are in the opposition.<\/p>\n
He noted that from the fact before the court, Utomi is alleged to have made public declarations setting up a shadow government under the umbrella of a registered entity known as the Big Tent Association, an allegation that he (Utomi) admitted in his counter affidavit (one of the documents he filed in court).<\/p>\n
The judge noted that there is no provision in the entirety of the Nigerian Constitution or any other statute which allows for a shadow government or shadow cabinet.<\/p>\n
\u201cNot only in Nigeria, even other Presidential systems, such as the United States of America, where we copied our presidential system, there is no space for shadow government or shadow cabinet.<\/p>\n
\u201cAny opposition party do not have the right to set up a parallel government. The opposition can only criticise the government and hope to convince the voting public to vote it into office in subsequent elections,\u201d the judge said.<\/p>\n
The judge acknowledged the argument that the shadow government project was still in its planning stage, but held that if allowed to mature, Utomi and his associates\u2019 actions could lead to anarchy and a breakdown of law and order.<\/p>\n
Justice Omotosho said: \u201cThis court takes the view that a reasonable man on the streets of Nigeria is more likely to see the shadow government as being an usurpation of executive powers.\u201d<\/p>\n
He said the case is even made worse by the fact that the strange idea of a shadow government in a presidential system is being promoted by a person who once contested an election for the office of the President of the country.<\/p>\n
The judge added: \u201cAllowing the defendant to establish a shadow government as of right could lead to the formation of several other shadow governments, because it would be the right of every Nigerian in a population above 230million people, which could threaten the fragile cohesion of Nigeria.<\/p>\n
\u201cThis could potentially lead to the formation of 230million shadow governments, which could be replicated at the state level and the Local Government areas. No doubt, this would lead to anarchy, which this court will not allow.<\/p>\n
\u201cA group calling itself a shadow government is capable of inciting civil disobedience to constituted authority.<\/p>\n
\u201cI have carefully perused the Constitution of the Federal Republic of Nigeria 1999 (as amended), and I do not see any part of it establishing a shadow government or similar government or granting every citizen the right to establish same.<\/p>\n
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\n\u201cI hold without hesitation that the idea or establishment of a shadow government or whatever name it is called is strange and an anathema to our Constitution and laws,\u201d the judge said.<\/p>\n
He further held that the use of the term, shadow government, was capable of misleading people into disobeying the laws of the land and engaging in civil disobedience.<\/p>\n
The judge concluded on the issue by saying: \u201cA shadow government cannot therefore be allowed free rein as it is capable of causing chaos in the country.\u201d<\/p>\n
Justice Omotosho added that the fact that the court found the shadow government idea unlawful did not take away the right of the defendant and his associates to criticise the government, but that they can only do that in manners recognised by the law.<\/p>\n
He said: \u201cThe defendant and his comrades are at liberty to criticise the government, using their influence as highly educated individuals, without the need to form a parallel government. Doing so is contrary to the clear dictates of Section 1(2) of the Constitution.\u201d<\/p>\n
The judge faulted Utomi and his associates\u2019 decision to hide under the umbrella of a limited liability company \u2013 the Big Tent Association \u2013 to launch their alternative government arrangement.<\/p>\n
He said: \u201cThis is quite curious as companies limited by shares are usually profit-making enterprises, and not to be used to push political ideology or form a political opposition to the government in power.\u201d<\/p>\n
Justice Omotosho held that should Utomi be desirous of forming a shadow government, capable of taking over power, he should register or join a political party to carry out his desires and not register a company and turn same into a political platform.<\/p>\n
In resolving the third issue, the judge equally faulted Utomi\u2019s argument that the suit violated his rights to freedom of expression and freedom of association.<\/p>\n
He noted that the rights to association and expression claimed by the defendant form part of the fundamental rights guaranteed under the Constitution, but noted that such rights are not absolute.<\/p>\n
Quoting some decided cases, Justice Omotosho said: \u201cIt is worthy of note that the two rights being claimed by the defendant are part of the rights which can be legally violated.\u201d<\/p>\n
The judge held that, having earlier found that Utomi\u2019s declaration of shadow government was unlawful and threatens national peace and security, it was wrong to allow him to proceed in that direction solely on the argument that he was entitled to enjoy his right to associate and express his opinions.<\/p>\n
He said: \u201cIn the interest of public safety and public order, the right to freedom of expression and right to association of the defendant, with regard to the declaration of a shadow government, are unenforceable.<\/p>\n
\u201cAssociating with like-minded fellows, who are carrying on actions contrary to the Constitution of the Federal Republic of Nigeria, is not justifiable.<\/p>\n
\u201cThis court will not sit idle and allow persons like the defendant to cause confusion in the country under the guise of fundamental human rights. These rights are not absolute,\u201d the judge said.<\/p>\n
Justice Omotosho added that although Utomi claimed to be running a civil society organisation with the intention of holding the government accountable, his decision to engage in subversive behaviour like declaring a shadow government in a country where such is not permitted will be declared a nullity and unconstitutional.<\/p>\n
The judge noted that Utomi has always exercised his right to freedom of expression as reflected in the many books he has authored before now.<\/p>\n
He said: \u201cIn light of this, I hold that the defendant is not entitled to his rights to freedom of expression and right to freedom of association with regard to declaring a shadow government.<\/p>\n
\u201cThe plaintiff is right to file this action, being the foremost agency responsible for detecting internal security threats before they snowball.<\/p>\n
\u201cAllowing the defendant free rein is capable of jeopardising the security of Nigeria and may lead to similar declarations by all manner of groups with different aims and objectives. This cannot be, and same will be intently resisted by this court.<\/p>\n
\u201cIn the final analysis, the case of the plaintiff succeeds against the defendant, \u201cthe judge said and proceeded to grant the three reliefs sought by the plaintiff.<\/p>\n
* Makke, a public affairs analyst, writes from Abuja<\/p>\n","protected":false},"excerpt":{"rendered":"
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